View from the courtroom: Justice Scalia, a bit late to the stage

Here’s one more reason members of the U.S. Supreme Court don’t want their arguments televised. Who would want C-SPAN to show your late arrival to work?

When the Court took the bench on Tuesday morning, Chief Justice John G. Roberts, Jr., announced that Justice Antonin Scalia had written two opinions. Justice Scalia’s seat was empty, and without elaborating, Roberts said, “he’s asked that I announce them.”

The Chief Justice proceeded to read Justice Scalia’s “bench statements” in two modestly important cases. In Jesinoski v. Countrywide Home Loans Inc., the Court unanimously ruled in favor of a mortgage borrower in an interpretation of the federal Truth in Lending Act.

In the second, Whitfield v. United States, the Court unanimously affirmed a lower court’s interpretation of a portion of a 1934 federal criminal law which provides that a bank robber forces a person to “accompany” him when he moves that person to go with him for even a short distance. The case involved a fleeing bank robber’s encounter with an seventy-nine-year-old woman, who had a heart attack and died after the robber forced her to move between four and nine feet within her home.

Reading Justice Scalia’s summary, the Chief Justice said “accompany” does not connote movement over “a substantial distance,” as the bank robber had argued. “It was, and still is, perfectly natural to speak of accompanying someone over a short distance—to the dinner table, to the next room, to the stage.”

While many in the courtroom wondered where Justice Scalia was today, reporters in the press room were quickly informed by the Public Information Office, which had communicated with the Justice’s chambers, that he was stuck in traffic and was expected to arrive soon.

Traffic in the Washington area was indeed heavy during Tuesday morning’s commute, perhaps owing in part to a smoky accident on Monday evening on a subway line, resulting in one death and dozens of passengers being sent to hospitals.

It is extremely rare for members of the Court to be late to work on an argument day. The most famous example of the modern era was in 1996, when a blizzard shut down most of official Washington but not the Supreme Court. (The lawyers for the case to be argued were all in town, so then-Chief Justice William H. Rehnquist decreed that the argument would go on. But Justice David H. Souter, the hardy New Hampshire native, set out in his Volkswagen Rabbit, only to get stranded in the snow. He was rescued by the Supreme Court police, and arrived about ten minutes late to the bench.)

Several years back, Justice Scalia was running late during his morning drive to the Court on another argument day. I know this because I was running late that day, too, and his car nearly collided with mine a few blocks from the Court. It turns out, as I realized from a closer look at the intersection in question a little later that day, that the Justice had a green arrow to turn right, where I was turning left from the opposite direction. So if we had collided, I would have been the one in the wrong. (For reasons of discretion, I won’t mention what kind of car the Justice was driving, but it was no clunker.)

Back in the courtroom on Tuesday, new bar members were sworn in, and arguments began in Mach Mining LLC v. Equal Employment Opportunity Commission, a case about whether and to what extent a federal court may enforce the EEOC’s duty under federal law to conciliate employment-discrimination claims before filing suit.

Just after 10:10 a.m., after the argument had been underway for four or five minutes, the center curtains stirred behind the Chief Justice, and Justice Scalia moved a short distance to the stage, or to his seat on the bench (which is often his stage, of course). A few minutes later, an aide brought his silver coffee go-cup and some case materials.

At 10:21, Justice Scalia felt sufficiently up to speed to chime in. “Can I ask something about this,” he said to the lawyer before him. The solicitous tone was uncharacteristic, and reminiscent of the courtly way that now-retired Justice John Paul Stevens would enter an argument before asking a razor-sharp question.

Before too long, with a few sips of his coffee, Justice Scalia was back to himself, interrupting the lawyers to grill them without asking their permission.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Mach Mining v. EEOC. The author of this post is not affiliated with the law firm.]

Major Cases

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Air and Liquid Systems Corp. v. DeVries In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

Nielsen v. Preap The judgments of the U.S. Court of Appeals for the 9th Circuit -- that respondents, who are deportable for certain specified crimes, are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail -- are reversed, and the cases are remanded.

Washington State Department of Licensing v. Cougar Den Inc. The Supreme Court of Washington’s judgment -- that the “right to travel” provision of the 1855 Treaty Between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation -- is affirmed.

Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.